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Federal Court decision on iiNet vs. film and television studios
The Federal Court has found in favour of internet service provider (ISP) iiNet Limited (iiNet) in a matter brought against it by several major film and television studios and also involving the Australian Federation Against Copyright Theft (AFACT).
The Federal Court has found in favour of internet service provider (ISP) iiNet Limited (iiNet) in a matter brought against it by several major film and television studios and also involving the Australian Federation Against Copyright Theft (AFACT)
A foremost issue of the proceedings is whether an ISP, by not taking steps to stop infringing conduct by some its users, thereby authorises the copyright infringement of these users. The importance here is that under the copyright act, a person authorising copyright infringement is viewed in the same way as a person directly infringing copyright and subject to the same penalties.
In deciding the matter, Justice Cowdroy found that:
Certain iiNet users did directly infringe copyright by making available online, electronically transmitting and making copies of the relevant films.
Whilst being aware of infringements occurring, and not acting in regard to their cessation, iiNet did not authorise those users’ infringements of copyright, the primary reasons for this being:
1. Internet access itself is not the ‘means’ of infringement – the ‘means’ by which users were infringing copyright was through their use of the BitTorrent system. iiNet has no control or responsibility over BitTorrent system and was thus not providing the ‘means’ to infringement.
2. iiNet did not have a relevant power to prevent those infringements occurring.
3. iiNet in providing only access to the internet, did not sanction or countenance infringing acts nor deliberately structure its products with the purpose of doing so.
iiNet satisfied safe harbour requirements but was not in need of their protection due to the abovementioned finding.
Cowdroy J’s orders include the dismissal of the application and that iiNet’s costs be paid by the applicants.
Roadshow Films Pty Ltd v iiNet Limited (No. 3)  FCA 24
For more information, please see the following:
Full Judgement of Cowdroy J: http://www.austlii.edu.au/au/cases/cth/FCA/2010/24.html
AFACT Press Release:
iiNet Press Release: